Technology Predicts How Jurors Will Vote

I’ll get my soapbox moment out of the way early in this post: Rule 1.1’s duty of competence includes tech competence.

There.

Now, here’s another area in which technology might impact the scope of the duty.  The ABA Journal has this story about Voltaire, a tech company that developed software that “can search through billions of data points, including public records and social media posts, and—within a matter of minutes—pull up all kinds of information on prospective jurors.”  Per the article, the company’s origins are in its CEO’s realization “that law firms didn’t do a very good job using technology to assist them in their cases.”

Hmm. Sounds familiar.

Anyhow, if you’re interested, check it out.  Seems we’ve come a long way from the days of Gene Hackman’s use of technology as a jury consultant.

Voltaire interests me not only from the perspective of a lawyer’s duty of competence, but from a social media standpoint.  Two years ago, I served on jury duty.  Much to my chagrin, I wasn’t picked for a single case.  I presume because the attorneys knew all they needed to know about me.  Still, had they used Voltaire, what more would they have learned about me?

Anyway, I digress.  Back to competence.

Rule 1.1 states that “[c]ompetent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” I am NOT saying that the duty of competence requires an attorney to use Voltaire (or a service like it) when picking a jury.  At least not yet.

Someday, a client who loses at trial will ask their attorney why the attorney didn’t make use available technology.  And that “ask” might be in the form of a disciplinary complaint or malpractice claim.  Then, the question will become whether reasonably necessary thoroughness and preparation for a jury trial includes using a technology like Voltaire’s.

Voltaire

 

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Social Media Sanction! Except, Not Really

Regulators, practicing attorneys, and those who opine on legal ethics seem to wait with bated breath for any sort of disciplinary sanction involving a lawyer’s use or misuse of social media.

In my view, the collective anticipation causes an anxiety that leads lawyers to distrust, if not avoid, social media.  That’s too bad.  Lawyers who distrust & avoid social media tend not to develop the level of tech competence required in today’s practice.

Here’s a test: you’re having coffee, procrastinating about getting the work day started. You have time to read ONE article.  You see these two links:

  1. Lawyer who advised client to ‘relax’ in response to Facebook inquiries gets suspension.
  2. Nebraska lawyer suspended for failing to properly communicate with client.

Which do you choose? Everyone who chose #1, raise your hand.

As I expected, lots of hands.

The links are to the exact same story.  #1 ran in the ABA Journal, #2 in the Omaha World-Herald. To borrow a phrase, social media sells.  Are you telling me that my choice is “lawyer suspended for using Facebook!” or “lawyer fails to communicate with client?” Ha! I’ll take social media 11 times out of 10!

Here’s another test for my lawyer readers: raise your hand if, even without reading the story, you thought “See, I knew Facebook could get me in trouble.”

Again, lots of hands.

Now, read the opinion from the Nebraska Supreme Court.  In reality, the lawyer’s violation had very little to do with Facebook.  The lawyer’s responses to his client likely would’ve violated Nebraska’s rules whether transmited via Messenger, e-mail, phone call, or U.S. Mail.

In other words, a failure to communicate is a failure to communicate regardless of the medium.  The lawyer who fails to engage in a reasonable level of communication via Messenger in 2017 is as guilty of misconduct as the lawyer who, way before Nirvana, failed to engage in a reasonable level of communication in 1985.

This violation had nothing to do with social media.  Don’t fear social media.

Social Media

P.S.: talk about burying the lede.  The lawyer intentionally sued the wrong defendant in order to access deep pockets!!  To me, that’s a bit more disturbing than a garden-variety failure to communicate.

 

 

 

 

 

 

Protect Client Info When Traveling Abroad

Given the proximity of the Canadian border, and with the YLD Thaw in mind, this article strikes home.

As reported by the ABA Journal in this post, ABA President Linda Klein recently authored a letter to DHS in which she expressed “serious concern about standards that permit searches of lawyer laptops and other electronic devices at the border in the absence of reasonable suspicion.”  President Klein’s letter is here.

Let me be clear: I am NOT suggesting that Vermont lawyers have an affirmative duty to refrain from bringing devices that contain client data to Montreal when traveling for the weekend. However, understand what might happen upon your return.  And, as I often say in response to inquiries, avoiding problems is a great way not to have any.  So, if you don’t need your device that contains work & client data while you’re wandering the Old Port, consider not bringing it.

Somewhat related, I’ve previously posted a blog Subpoena to Disclose Client Info?

Border

 

 

 

Withdrawing? Remember this Disco Tune

So, you want to withdraw because your client hasn’t paid.  There’s a rule for that: Rule 1.16.

Specifically, Rule 1.16(b)(5) permits withdrawal when:

  • “the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.”

Per Comment 8, this includes a client’s failure to abide by the terms of a fee agreement.

This is where disco comes in.

As I was driving to work this morning, Thelma Houston’s version of Don’t Leave Me This Way came on the radio.  I admit: it caused me to dance in the driver’s seat as I carpool-karaoked south on 89.

But the chorus provides a great lesson: when you withdraw, don’t violate a client’s confidences on your way out.  A client’s failure to abide by the terms of a fee agreement does not relieve a lawyer of his or her obligations under Rule 1.6, the rule that prohibits disclosure of information relating to a representation.

Last December, the ABA’s Standing Committee on Ethics & Professional Responsibility issued Formal Opinion 476: Confidentiality Issues when Moving to Withdraw for Nonpayment of Fees in Civil Litigation.  In an excellent article on the advisory opinion, the ABA Journal warned that Lawyers should tread carefully before quitting a troublesome client.

Don’t leave your clients pleading for you not to leave them this way.

Disco Ball

 

Presidents’ Day & Civility

 

civility

On Presidents’ Day, I thought I’d share a message from Linda Klein.  Attorney Klein is the current President of the American Bar Association.  Her words are far better than any summary I could deliver.  So, please read Attorney Klein’s President’s Message from the February edition of the ABA Journal.

President Klein’s message reminds me of  Comment 4 to Rule 3.5 of the Rules of Professional Conduct:

  • “The advocate’s function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants.  A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.”

Finally, as a reminder, the Vermont Bar Association adopted Guidelines of Professional Courtesy in 1989.  Here they are:

Guidelines of Professional Courtesy
 
  • In fulfilling his or her primary duty to the client, a lawyer must be ever conscious of the broader duty to the legal system.

 

  •  A lawyer should act with candor, diligence and utmost respect.
  • A lawyer should act with courtesy and cooperation, which are necessary for the efficient administration of our system of laws.
  • A lawyer should act with personal dignity and professional integrity.
  • Lawyers should treat each other, their clients, the opposing parties, the courts, and members of the public with courtesy and civility and conduct themselves in a professional manner at all times.
  • A client has no right to demand that counsel abuse the opposite party or indulge in offensive conduct. A lawyer shall always treat adverse witnesses and parties with fairness and due consideration.
  • In adversary proceedings, clients are litigants and though ill feelings may exist between clients, such ill feelings should not influence a lawyer’s conduct, attitude, or demeanortowards opposing lawyers.
  • A lawyer should not harass opposing counsel or counsel’s clients.
  • Lawyers should be punctual in communications with others and in honoring scheduled appearances. Neglect and tardiness are demeaning to fellow lawyers and to the legal system.
  • If a fellow attorney makes a just request for cooperation, or seeks scheduling accommodation, a lawyer shall not arbitrarily or unreasonably withhold consent.
  • Effective advocacy does not require antagonistic or obnoxious behavior. Lawyers should adhere to the higher standard of conduct which judges, fellow attorneys, clients, and the public may rightfully expect.

Monday Morning Answers

Friday’s quiz is HERE.  The answers follow the Honor Roll.

Honor Roll

  • Beth DeBernardi, Esq.
  • Andrew Delaney, Esq.
  • Robert Grundstein, Esq.
  • Jackie Chiles’ Lewd-Lascivious-Salacious-Outrageous Fun Bunch
  • Keith Kasper, Esq.
  • Patrick Kennedy, First Brother
  • Hal Miller, Esq.
  • Herb Ogden, Esq.
  • Team Pegasus
  • Jim Runcie, Esq.

Question 1

Today I’m dong a CLE for the Workers’ Compensation bar. Let’s take a question from their world.

Wood represents Plaintiff.  Wood has actual notice from Plaintiff’s health insurer that the insurer has a lien on any recovery.

Richards represents liability carrier.  In connection with settlement, Richards ask Wood to execute an agreement that Wood will personally indemnify and hold harmless the liability carrier for any of Client’s unpaid liens.

Wood agreed.

Which is most accurate?

  • A.   Wood violated the Rules of Professional Conduct
  • B.   Richards violated the Rules of Professional Conduct
  • C.   They both violated the Rules of Professional Conduct
  • D.  Neither violated the Rules of Professional Conduct

See, VBA Advisory Ethics Opinion 2013-01; Wood by creating a conflict of interest & providing financial assistance to a client; Richards by inducing Wood to violate the Rules.

Question 2

Lawyer called me with an inquiry involving Client and  Other. I listened.  Then, I said

  • “It’s ok as long as Client gives informed consent, there’s no interference with your professional judgment or your relationship with Client, and you don’t share any information about the representation with Other absent Client’s consent.”

What is Other’s involvement with this situation?

Other is paying for Lawyer to represent Client.  See, Rule 1.8(f)

Question 3

Large Firm represents Brady in the matter Brady v. Ryan.  Small Firm represents Ryan.

Associate leaves Small Firm to take a job at Large Firm.    Which is most accurate?

  • A.   Large Firm must withdraw from representing Brady.
  • B.   Large Firm may continue to represent Brady.
  • C.  Large Firm may continue to represent Brady if Associate is screened from participation.
  • D.  Large Firm may continue to represent Brady only if Associate did not participate personally & substantially in Small Firm’s representation of Ryan , and, Large Firm screens Associate from participation in the matter.

This is Vermont’s Rule 1.10(a)(2).  The Vermont rule is more broad than the ABA Model Rule.  When a lawyer changes jobs, the ABA rule allows the new firm to screen the attorney even if the attorney participated personally & susbstantially in the matter while at the old firm.  Also, Vermont Rule 1.10(a)(2)(ii) and (iii) impose significant requirements beyond mere screening.

In that Vermont’s rule is more broad than the ABA’s, there is some concern that it limits job opportunities in a small state.  The counter-argument is that client loyalty and confidences are paramount.

Question 4

Nationally, which is most common with respect to  Electronically Stored Information?

  • A.   Discovery sanctions for failure to preserve ESI; See, This Study
  • B.   Discovery sanctions for producing ESI  in an improper format
  • C.   Disciplinary sanctions for failure to preserve ESI
  • D.   Disciplinary sanctions for failing to request ESI in discovery

For more, the California State Bar’s advisory ethics opinion on handling Electronically Stored Information is HERE.  Last week, the Wisconsin Bar published this post on ethics, professionalism, and E-Discovery.

Question 5

Identify the event that resulted in the American Bar Association deciding that legal ethics/professional responsibility should be a required course in law school.

Watergate.  See, ABA Journal, “Watergate’s Lasting Legacy is to Legal Ethics Reform, Says John Dean.” (that’s the Watergate complex, front left, on the banks of the Potomac, next to the Kennedy Center)

Watergate.jpg

Clients: Ease Their Experience

I’m not sure how to tie this to legal ethics, but I wanted to share it.  So, I’ll say this: Rule 1.1 of the Rules of Professional Conduct requires lawyers to provide competent representation.  I’m about to share with you an article that, at some level, suggests it’s possible that clients perceive competent representation as including a smooth ride along the way.  By “smooth ride,” I’m not talking results.  Rather, I’m referring to the ease of the client experience.

The post is HERE. It’s by Jack Newton, founder and CEO of Clio.  It appears on the ABA Journal’s site.

Referring to a survey conducted by CEB, Inc., of more than 75,000 consumers, Newton writes:

  • “CEB found that modern consumers are not seeking exceptional customer experiences. Instead, they prefer effortless experiences.”

From there, Newton referenced Uber and Amazon, noting that:

  • “For examples of a smooth experience, we can look to innovators of the 21st century. These companies have disrupted deep-pocketed incumbents by delivering truly effortless experiences.”

Check out the post.  Some of you might find it helpful.  You might ask yourself, “self, am I delivering an effortless experience to my clients?”  Indeed, as the Judiciary, we should be asking the same question: are we delivering an effortless experience to our consumers? If not, how can we make it closer to the type of experience that consumers expect?

Newton’s post also includes fascinating thoughts on data.  I’ve always been struck how resistant the legal profession is to using data. With respect to collecting fees, Newton notes that the:

  • “data paints a bleak picture: Out of an eight-hour workday, the average firm collects payment on only 1.5 hours of billable time. These unit economics would be devastating to almost any industry, and they help explain why—despite charging an average of $232 per billable hour—the average small-to-midsize firm struggles to make ends meet.”

Imagine representing a restraunt owner who tells you that of every 8 meals served, she only collects payment for 1.5?

Again, take a look at Newton’s post. It includes some excellent tips on using data to make your practice more efficient.

I agree with Newton’s conclusion:

  • “The winning law firms of the future will take a page from the disrupter’s playbook: Deliver truly effortless customer experiences while advancing a ruthlessly data-driven culture of continuous improvement internally. Combined, these two forces will reshape the face of legal services.”

In the end, I suspect it will be the lawyers who figure out how to make the client experience effortless who see a significant increase in the number of billable hours collected.  In that sense, competent representation will not only benefit your clients, it will benefit you.

 

Tech Competence as Access

False advertising? Guilty as charged.

tech-ethics

No, this post isn’t part of my series on Ethics as Access: Using the Rules of Professional Conduct to Increase Access to Legal Services.

However, the only reason it isn’t is that the Vermont Supreme Court’s Advisory Committee on the Rules of Civil Procedure has yet to act upon the recommendation that Vermont adopt Comment 8 to Rule 1.1 of the Rules of Professional Conduct. The proposed comment makes it clear that the duty of competence includes a duty of tech competence.

I first reported on the recommendation here.  As of September 30, and according to Robert Ambrogi’s phonemenol LawSites Blog, 25 states had adopted Comment 8.

Here, the recommendation has been before the civil rules committee for nearly two years.

Wait…are you thinking “why is the civil rules committee reviewing proposed amendments to the rules of professional conduct?”  Me too.

It’s inexplicable to me why, in Vermont, the committee that advises the Court on the Rules of Civil Procedure vets proposed amendments to the Rules of Professional Conduct.  I’d assume that the Professional Responsibility Board would play that role. After all, when it promulgated Administrative Order 9, the Court vested responsibility for, and supervision of, the Professional Responsibility Program with, that’s right, the Professional Responsibility Board.

Further, the Board employs a full-time bar counsel who, you know, blogs about issues related to attorney ethics. Finally, as most of you are udoubtedly aware, the Rules of Professional Conduct are not part of the Rules of Civil Procedure. Indeed, Rule 16 of Administrative Order 9 clearly states that “[d]isciplinary proceedings are neither civil nor criminal but are sui generis.”

One might think that just as proposed changes to the Rules of Civil Procedure shouldn’t go through the PRB, proposed changes to the Rules of Professional Conduct shouldn’t go through the Civil Rules Committee.

But one might think a lot of things.

And, anyhow, I digress.  Back to tech, ethics, and technological competence as access.

Not sure how to fit in pro bono work?  Here’s an interesting post from the ABA on how technology is making it easier to do pro bono work.

As I’ve preached, competence includes tech competence. I’ve also blogged about pro bono work.  If you accept the proposition that competence includes tech competence (which the ABA and 25 states have accepted), and if you believe in pro bono work, then remember that tech can make it easier for you to comply with Rule 6.1’s aspirational goal.

For all my posts on tech ethics, go here.

 

 

Cybersecurity Insurance

This doesn’t really involve ethics or the Rules of Professional Conduct.  However, with ethics issues related to the electronic storage & transmission of client information being such a “hot topic” lately, I thought I’d post it.

Per this article from the ABA Journal, some are of the opinion that “cybersecurity insurance” is something that lawyers & law firms “must have.”  As you know, Vermont’s rules do not require lawyers to carry liability insurance.  Still, for those of you who do, this might be of interest. And for those of you who don’t, maybe it’s food for thought.

cyber-security